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HomeMy WebLinkAbout1986-1998.Sundberg.88-03-10, ,., ‘~ .. ONTI\RIO CROWN EMP‘CJYEES GRIEVANCE SETTLEMENT BOARD 1998186 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: OPSEU (Sundberg) Grievor The Crown in Right of Ontario (Ministry' of Correctional Services) Employer J.H. Devlin Vice Chairman J. Best .Member G. Peckham Member A. Ryder Counsel Gowling & Henderson barristers & Solicitors For the Employer: A. Arungayan Staff Relations Officer Ministry of Correctional Services Hearing: January 25, 1987 1 The Grievor, George Sundberg, is employed at the Lindsay Jail and is classified as a Correctional Officer 2. In a grievance dated January 11, 1987, Mr. Sundberg alleges that he was disciplined without just cause in tha,t he received an' unwarranted written reprimand. The reprimand to which Mr. Sundberg refers is dated December 2, 1986 and Mr. Sundberg requests that it be removed from his file. At the outset of the hearing, Mr. Arungayan, on behalf of the Employer, raised a preliminary objection to arbitrability. It was the position of Mr.,Arungayan.that the letter of December 2, 1986 was issued for purposes of counselling and does not constitute disciplinary action. In contrast, hit was the position of'Mr. Ryder, on behalf of the Grievor, that the letter must be construed as a disciplinary communication and that a grievance in respect of the letter is arbitrable by virtue of Section 18(2) of the Crown Employees Collective Bargaining Act. Although by agreement of the parties, the Board heard evidence with respect to both,the preliminary objection and the merits, having considered the matter caref.ully, we are of the view that the preliminary objection advanced by the Employer must prevail. The letter which is the subject matter of Mr. Sundberg's grievance is to the following effect: II . . . December 2nd, 1986. Mr. George Sundberg, Lindsay Jail . 50 Victoria Avenue North, LINDSAY, Ontario. K9V 4G3 Dear Mr. Sundberg: This will confirms our meeting in my office at ,approximately 0900 hours on December lst, 1986. Two incidents had occurred earlier this date which were of concern to me, during the~sh,ift change in the Control Module on December lst, 1986. I instructed you to account for the keys and record the number on the shift changeover certificate. You replied 'It looks alright', at which time I instructed you to put the key count of the shift changeover certificate to which you replied 'I don't do that,'. Later, during the same changeover I 'further instructed you to explain the operational procedures of the Control Module to Miss K. Kinger, the new Casual Correctional who was on shift for training purposes. Your reply was 'As long as she can drink coffee and read the newspaper she will do alright,'I am not the Staff Training Officer'. During our meeting I showed you copies of Lindsay Jail Standing Order No. 25 and Lindsay Jail Instruction #13/84 which clearly show the proper procedures for the accounting of security keys in the Control Module. .During our meeting you indicated that in both situations you made these comments as a joke. Although a sense of humor is necessary in any working environment it must be used appropriately at the proper times. Certainly in 3 t~hese instances, your al.ledged (sic) joke or sense of humor was most inappropriate. As a Correctional Officer with approximately 4 years expe'rience, you must be aware of the necessity of keeping .accurate .counts of security keys Ian an institution. Security of an institution is not a joke, it must be maintained in the highest'order in order to protect both staff and inmate. Further, your comments made in front of a now staff member cannot be condoned. You can appreciate that usually first impressions are lasting impressions and the job of a Correctional Officer is not to drink coffee and read newspapers while on duty, and these type of comments show a lack of professionalism on your part. Also, it is a function of a Correctional Officer to show new staff the proper procedures for the operation of the Jail. .Your active participation in the meeting and your commitment that it won't happen'again is appreciated. This letter is not to be construed as discipline but as a means of assisting you in becoming a more efficient Correctional Officer. Yours truly, 'D.G. Goden' D.G. Goden OM-14 Shift Supervisor c.c.: Mr. P.H. Campbell, Superintendent." Both Mr. Goden, who gave evidence at the hearing, and Mr. Arungayan undertook to,the Board that the letter of December 2, 1986 would not be used to support disciplinary action in the future. 4 The nature of certain written communications. from an employer to an employee have been considered in a number of grievances before the Board. In Cloutier and Ministry of Revenue, GSB Fi.le #20/76, the grievor received a letter from the employer advising him that~ unless there was an improvement in his conduct in the future, his next merit increase would not be forthcoming. In that case, the Board found that the communication was neither an appraisal under Section 17(2)(b) ( now Section 18(2)(b) ) of the Crown Employees Collective .Bargaining Act nor disciplinary action within the meaning of Section 17(2)(c) ( now Section 18(2)(c) ) because the letter referred to action that might be taken in the future. It was implicit, therefore, that such action was not being taken at that time. Similarly, in Naik and The Crown in Right of Ontario (Ministry of the Attorney General), GSB File #108/77, the grievor received a memorandum from her supervisor referring to her practice of taking extended coffee breaks and her use of profanity. The memorandum also advised the grievor that future outbursts would not be tolerated and that if they occurred, necessary action would be taken. Although the letter was ctiaracterized as a warning, the Board found that the warning was not disciplinary,in nature as .its purpose was to provide guidance to the employee as to the scope of acceptable ,: . 5 conduct. In dealing with the preliminary objection to arbitrability advanced by the employer 'in that case, the Board had this to say: I, . . . was the Cloutier case and the cases cited therein make clear, one can not characterize every communication from an em.ployer to an employee as disciplinary action. Only if the warning will have a prejudicial effect on the' employee's position in future grievance proceedings, in the sense that it is being used to build up a record against the employee, can it be characterised as disciplinary action. To conclude otherwise would be to allow an employee to grieve any communication which he believed to be unfounded, with unfortunate results for the grievance procedure and for the employer trying to give guidance to an employee without engaging in formal disciplinary action. As Professor Beatty stated in Cloutier with regard to criticisms that mrght have adverse effects in the future - That is to say if this Board were to accept any other construction of s.l7(2)(b), it would 'ensure that every letter or memorandum sent by an employer to an employee, which commented critically on the latter's work performance, could be made the subject of grievance~to be brought before this Board. As a consequence, such a construction, by bringing the anticipated but not yet realized decisions of'the employer before this Board, could well result in the grievance procedure being clogged with, and.this Board's attention being diverted to, matters which are at most of marginal significance and which may, in the final analysis, be only of hypothetical interest to the parties. While Professor Beatty was discussing s.l7(2)(b) of the Act the same comments are applicable with regard to s.l7(2)(c). While Mr. Nabi for the grievor expressed concern for the adverse effects of such a ,, 6 memorandum on the grievor's opportunities for promotion or he.r relationship with,a new supervisor, this does not lead.to the conclusion that the warning is disciplinary. If the grievor feels that the charges are not well-founded, she can, as Professor Beatty suggested in Cloutier, submit ,a letter to the employer and retain a copy for herself. Then, if she'considers herself subsequently prejudiced in promotions or appraisal because of this warning, she can raise the issue in a gri.evance at that time. 1, . . . Finally, in OPSEU (N..Zuibrycki) and The Crown in Right of Ontario (Elinistry of Industry and Trade), GSB File #425/81, the grievor received a memorandum from the employer complaining about his failure to follow certain office procedures and about his discussing personal matters with other employees during office hours. There the Board reviewed the earlier decisions in Cloutier and Naik and concluded that the memorandum was properly characterized as an attempt to require the employee to conform with normal office procedures and not as a form of disciplinary act,ion. In this case, the letter of December 2, 1986 is critical of Mr. Sundberg's manner and conduct in relation to two incidents which occurred on December 1, 1986. The letter also records a meeting which took place between Mr. Goden, the shift s,upervisor, and the Grievor in which Mr. Goden outlined the reasons for which the Grievor's conductwas considered to be unacceptable and advised him of the appropr-iate procedures to be i. i 1 followed. The letter of December 2, 1986 concludes by advising the Grievor that the communication was not to be construed as disciplinary but rather was intended to assist the Grievor in becoming a more efficient Correctional Officer. In our view, there is nothing either on the facesof the letter of December 2, 1986 or in the evidence which we heard to lead us to conclude that the letter was a disciplinary response. In the circumstances, we are also unable to accept the submission of Hr. Ryder that the letter was indicative of discriminatory treatment on the part of the Employer. ,Although Mr. Goden only expressed his concern orally to the employee on the out-going shift with regard to the procedure to be followed for the counting of security keys, Mr. Goden testified that greater responsibility for recording the number of keys rests withy the Correctional Officer coming on shift. On December 1, 1986, the Officer coming on shift was the Grievor, George Sundberg. Moreover, the Grievor was also involved in. another incident that day and Mr. Goden felt the events were sufficiently serious to record them in writing.~ This, however, does not necessitate a finding that the letter was disciplinary in nature as we know of no requirement that confines counselling to oral communications. Although the letter of December 2, 1986 was placed on Mr. Sundberg's file, we are satisfied that it was intended to I . 8 i . ,* provide guidance to hr. Sundberg as to acceptable professional conduct while on duty and to remind him of the securi'ty, procedures to be followed at the Institution. As pointed out in Naik and Cloutier, it is open to Mr. Sundberg to respond in writing to the letter of December 2, 1986 if he feels that the Employer's criticism is not justified and to ask that his response be placed on his Ifile. Mr. Ryder made much of the fact that it was not until the hearing that the Employer gave an undertaking .to~the effect that the letter of December 2, 1986 would not.be used to build a record against the Grievor. The letter itself, however, is quite clear that it was not to be construed as disciplinary action and, in our view, such a statement is equivalent to the undertaking given at the hearing. In the result and for' the reasons set out, the grievance of Mr. Sundberg is hereby dismissed as inarbitrable. DATED AT TORONTO, this 10th day of MARCH, , 1988. J.H. DEVLIN, VICErCHAIRMAN G. PECKMAN, MEMBER